Convo Partially Petitions the FCC
8 03 2010All..
Disclaimer: I own edsalert and am a co-founder of Convo. So take this post for what it is.
That said, I feel strange posting that so I will just quote with no comments from me and then let you readers read the pdf file in its entirely. You all already have read my "impending and intending" comments for the FCC so will leave it as it is.
"The unintended effect of the Ruling is that individuals with hearing loss that utilize VRS and also work gainfully as ethical employees of VRS providers will experience increased difficulties in obtaining employment in that industry."
"Convo has a proposition for a different reimbursement methodology for VRS staff making VRS calls. VRS reimbursement rates for business calls by deaf/hoh employees of VRS providers should be allowed for full recovery at a reasonably modified rate that captures the cost of VRS Communications Assistants plus overhead costs minus the cost of telecommunications infrastructure access. This would make the cost of using VRS no greater for anyone, provider or otherwise, at rates fundamentally no different than what other IP-based telecommunications providers pay for their own employees in a business environment."
eyes open & thumbs up,
Ed
Long Link:
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020394929
Kudos to Convo for standing up for deaf people. However, this makes me wonder why Convo made a video last week saying that the ruling was good and didn’t impact Convo. Did you finally realize that your original video was wrong or were you just trying to take advantage of another provider’s objections?
In any case, I’m glad Convo is now taking a similar position as purple and Kelby Brick. It makes me reconsider everything. I’m really disgusted at the FCC for being so willing to take steps that ultimately hurt deaf people.
Ed – Thanks for the petition and you have my personal full support. Its my perception that, due to the lack of a notice and the opportunity to comment, the Ruling was issued based more on information acquired as a result of its enforcement activity on the issue and less on relay stakeholders feedback about being a deaf employee in the VRS industry. What is our reality check that we werent able to provide the FCC? I’ve been in the business for three years now and boy, its been a long and difficult haul for deaf VRS employees to gain opportunities higher than primarily consumer facing positions. Many times it boils down to communications with and confidence in deaf employees. This is why the ready availability of VRS is so critical to deaf employees in the industry, to promote greater communication between deaf and hearing colleagues and the resulting greater confidence and opportunity. But now, there is fear and uncertainty introduced in our work environment about using VRS. People in our industry have clearly shrank back from using VRS to communicate with each other, because they are afraid of affecting their employers’ bottom line when they are now surviving month to month through this vrs "reform"; deaf employees are nervous about perceptions about their value based on how much it costs to accommodate them and how many video interpreters are diverted to serve them instead of "paying" customers. Thats wrong that deaf VRS employees feel that this decision is on our backs and this cannot stand. In the aftermath of the Ruling, the FCC is asking about and being reassured by providers that they wont diminish opportunities for deaf employees. But that has to be underscored by either incentive or enforcement – the Ruling took a hammer to VRS as a reasonable accommodation, rebranding it instead as a "business expense" and I dont see how the FCC can enforce eeo policy and practices in the VRS workplace so, yeah, where does that leave us? And if I’m looking at the FCC as hard as theyre looking at us, I dont see more than one deaf FCC employee there, either in person in all my visits and meetings there, or online with the EEOC Annual Reports on the Federal Workforce. I’m just not clear or confident they really had the benefit of a deaf perspective in deciding this. I’m feeling very concerned about the FCC providing more weight on the sensitivities about the TRS Fund instead of equal opportunity principles in determining our telecommunications access issues. I’m not sure if folks realize that the Ruling references to the Americans with Disabilities Act just once, and in a footnote at that, while the TRS Fund is mentioned in the Ruling I think over 30 times, I lost count. Certain providers have spurred this on, discussing our telecommunications access rights in the context of "protecting and preserving the integrity of the TRS Fund." Yes, we must root out and stamp out fraud and abuse in TRS, but we must never ever waver from the statutory requirement that the rights and obligations under the ADA determine our access to telecommunications, not the size of the TRS Fund. I think your proposal is an effort in collaborating with relay stakeholders and the FCC to get this part of the Ruling right, and I am willing to work to support making that happen. -Jeff Rosen
I am not going to divulge my name as I do not want to be attacked for supporting positions that may be viewed as anti Deaf community, but I really genuinely am saying this in the best interests of the community. Now, this is a statement that must be said.
We are promoting mediocrity in the Deaf community. VRS providers are saying that if it wasn’t only for them, the Deaf ASL users would be unemployable. Also, what they are asking for here is being reimbursed at the $6~ rate(s) no matter what the Deaf employee does on the videophone. The employee’s work product in the end is the number of minutes. They are not being rewarded for their hard work but for the sheer number of minutes they spend with VRS agents.
I’m tired of this crap. The world does not work this way. What worked for you in the deaf schools and at Gallaudet definitely does not work in the real world. The constant hatred and stimagizing of everything hearing and viewing the FCC fiasco as the Deaf community fighting against the man achieve absolutely nothing in the end but continued struggles and frustrations.
What noble principles we all have, but they mean shit in the real world. The world owes us nothing. We have to work hard, individually and collectively, to earn our just rewards. Here, the rewards are definitely not just. To protect these actions by citing civil rights and access is absolutely shameful. It only demeans us in the end by saying that we are nothing and must suck from the teat of the TRS Fund for there is nothing else we are capable of doing. Do we want that?
Well, in the end, it may all mean nothing because we’re eventually going to suck from the teat like Winston Smith did at the end of Nineteen Eighty-Four. But before we get to that point, let’s all stand up and assert our capabilities and self-worth. We can do more than just make VRS calls to podcasts, 800 numbers with long busy times, and internal conference calls with no hearing people involved.
Let’s stop focusing on the number of minutes, alright? And you deaf people at the top: stop taking advantage of the uneducated Deaf. What you’re doing aren’t helping them at all in the end.
———————-
A separate comment on the issue of stakeholders. Honestly, do you really think the FCC would take them seriously after they have been turning a blind eye to all of these shenanigans for almost 10 years and even profiting from it as well. Remember, the time of being naive is over.
Ed: one clarification, my use of ‘you’ is not directed against you personally but against the general sentiments I get from reading the blogs, Twitter, and vlogs on YouTube and elsewhere.
Joey,
Please read the petition carefully. What petition is offering what I hope is is a win-win solution. No conflict there. I support the underlying concept of what FCC is trying to do, just don’t support how FCC does it on “business expense”. Remember the Convo video clip says support FCC except for a couple items. No, Convo is not taking same position as Kelby Brick. Using deaf/hoh employees for the sole purpose of racking up minutes are not right no matter how one slices it.
Also, Joey, I check edsalert “waiting to be approved” every so often and often overlook “pending” comments. I do not have problem approving your comments.
eyes open & thumbs up,
Anon,
Point taken. Cynical, huh?
“time of being naive is over”. Oh, I agree absolutely with that statement. Absolutely! It is time that we, by we I mean all of us – deaf/hoh, VRS industry, government, etc. – wake up to the realities. Just because we have issues that seemingly is insolvable does not mean we should give up.
Jeff Rosen in his very last paragraph said it all. We just gotta find solution that is a win win resolution. By win win, I mean for gov’t, VRS providers AND deaf/hoh employees of VRS providers. Will FCC blatantly ignore the petition? I sure hope not. We’ll see..and will try to keep y’all posted on that.
eyes open & thumbs up..
Your petition sure seems to take the same position as Kelby and Purple. Where does it say that Kelby or Purple supports racking up minutes? Seems like you re attacking them: sure hope you have evidence to back up your attack. Anyway, I am grateful that both purple, Convo, and snap are standing up for deaf people. Where are the others? Shameful!
Ed
I hope that a panelist will bring the deaf VRS employees’ rights issue at FCC disability panelist meeting tomorrow. How would FCC react to the concern of the rights to making calls/ using conference calls (that it explains in the CONVO petition to FCC) if the panelist brings up the issue?
I am going to sit in early morning at 5:45 am PST and watch this meeting.
Mark
Ed-
By any chance, are you a lawyer? Nicely written brief. Not sure of its persuasive and probative value. I think the FCC is pretty much dead set against any regulatory scheme that allows VRS employees to generate minutes. Hopefully the FCC will listen, and at least open the issue up to public comment and rule making.
I found it interesting that you raised the disparate impact issue; there may be some equal opportunity issues involved in the FCC Declaratory Ruling. Maybe some organization will challenge the FCC Declaratory Ruling in the Federal Courts on constitutional grounds.
Ed and Faithful Bossonites,
I think you (Ed) did a very good stab at the problems before the industry and at those who have paved the way to its present state of success and disarray. Looks like your years of studying FCC postings by all the VRS providers has made you sound like a lawyer as well.
One thing that we all need to realize about the impact of the ruling the FCC has turned a simple connected band into a Mobius strip, such that you don’t know which side you really began on and ended at, but you know its not the same place. It’s logic is quite beyond me. Here is why:
First of all, it makes good policy sense to spread the obligation to level a playing field amongst all those who play when the private sector has no economic incentive to do so itself. That is where “Government” steps up to correct the imbalance and to provide the means to an end.
In this case, all providers of the US telephone service network that contribute to the Interstate TRS Fund have already collected from all their subscribers the “obligation” (in the form of the basic monthly service charge assessed on each user account) the ADA Title IV created. Through Title IV’s largesse, it makes the use of the communications highway available to those who were not on it before, REGARDLESS of their employment status. The only qualifying factor was the presence of a barrier to communicate with someone who could not sign, hear, or speak (without the need for some intervening mechanism or process).
In other words, the highway has already been bought and “paid for” and will continue to be so by all subscribers paying indirectly through the phone companies. It is all a priori, a given.
Being a user of the highway is thus a “right” possessed by those who need to transcend the barrier created by deafness or lack of signing skills (in the case of hearing persons). So, to my mind, why is the FCC now exacting a charge from VRS providers for their employees use of that pre-paid highway by denying them the ability to have the NECA Fund pay for the barrier the fund is designed to financially “remove” by subsidizing the access agent, i.e., the cost of the video interpreter. Is it because being deaf is good for business. Tooting right it is, only in the sense that deaf employees, as paramount users/contributors/beneficiaries of any advances telecommunications engineering and innovation can accomplish, are the best resource available and thus are highly desired employees for that reason. The fact they need VRS to do their jobs is besides the point and at the same time, it is THE point. The FCC decision messes with the neat historical genesis that lies behind Title IV.
As Ed so effectively points out, provider costs should be equal in terms of an employee’s telecommunications infrastructure costs, regardless of whether they are deaf or not and that is what should be properly characterized as a business expense under “telecommunications expenses” and the fund should directly compensate for the rest because that is what the fund was designed to really subsidize, instead of forcing VRS employers to treat it as a “reasonable accommodations” cost.
It makes no sense to impose an obligation on another party when the obligation has already been satisfactorily deal with by a preceding participant who paid it forward.
Capisce, ya alls?
B.
Bob,
Wow, you expressed it very well. Exactly!
eyes open & thumbs up..
Ed,
I was hoping your petition would not be too extreme and it looks like you nailed it on the head. VRS providers should not have to pay more than than any other company for employing deaf and hard of hearing but at the same time VRS companies should not be profiting from calls that its employees make. Looks like you found a middle ground that most people should be able to support.
I just hope if FCC adopts your recommendations that there is not a big controversy over what this reduced rate should be. It seems like there is a big debate about what exactly the break even rate is for VRS calls and this could be one of the reasons that FCC does not want to go down this road.
CR
Bob (and also Ed):
I really appreciate your comments as they are more substantive than most. But I would like to know if you have considered Title I of the ADA as well. Title I places on the employer the obligation to provide reasonable accommodations for its employees, such as interpreters and the like. So, with Title I in mind, is it okay for employers to tell its deaf employees to use TRS to access meetings and make phone calls.
I mean, if I ask for a sign language interpreter in person to make a phone call (which is a lot cheaper compared with the $6.50/min rate), is it okay for my employer to say, ‘No, I don’t want to pay anything, please use VRS instead.’
Also, is there any significant difference between having an interpreter in person (Title I) and accessing one over the phone (Title IV)? If not, can all employers require their employees to use VRS instead?
My point is that the expenses one would normally expect the employer to pay is shifted to the TRS Fund when this happens. Is that what Congress and the FCC intended?
So the best solution, at least to my feeble mind, is to require all employers to use VRI instead. For the employers, the expenses are tax deductible and they are ‘business expenses,’ the cost of accommodating its employees, and can be submitted as such to the NECA.
I see we’re still in the mix of the ADA laws…..
blurry in previous post….
Nothing restricts a deaf person from using VRS while handling a business call in the VRS industry. As long as they’re not using their personal VI’s or their sub-contract. To use a different VRS provider is completely OK…
On the bright side the company loses nothing but a couple of minutes giving to their competitor.
Great post Bob!
To CNW: Even if VRI was available to every VRS employee 24/7 at a reasonable speed of response, it still wouldnt be an appropriate across the board solution because they wouldnt be able to directly make and receive calls using the employees’ ten digit number.
To JRR: VRS companies provide their employees with a registered TDN associated with their work phones in order for them to access VRS; they are the default provider for their employees thus virtually all calls go through them (no one is going to be telling employees or their callers to dial around to another provider).
Relay stakeholders have previously proposed to the FCC variations of zero-sum video interpreting for their employees, but since there was no public notice, there was no opportunity to consider these and other suggestions in deciding the issue, making this a harder effort to arrive at an appropriate solution.
-Jeff
To JRR:
In asmuch as this is going to rise some ire in the interpreter community,
I am going to stick my neck out and speak some damnable truth.
While for the most part, interpreters doing freelance work abide strictly to codes of confidentiality because it is necessary to THEIR business need (who wants to hire a blabbermouth?), interpreters in VRS settings do not have the same business need. They “belong” to the employer’s business need and the employer can pretty much dictate its own risk scenarios based on its business model/needs. Ethics would be one business need, but as we all know, when money comes calling, ethics can be tossed out of the window along with all the other fair play intangibles.
If I were an employer, having knowledge of my competiton is a necessity for survival. If all other VRS providers’ employees were told to use somebody else’s VRS platform and interpreters, it would be quite dangerous from a proprietary information POV. A competitor’s VI could, if threatened with job loss (or out of brand loyalty) probably would fess up proprietary information obtained through a relay call. Hence it makes no sense for Competitor #1 to use Competitor #2′s VI for business related calls, ethical mandates and posturing notwithstanding.
CNW: While VRI could be used as a form of reasonable accommodation to make telephone calls, it is not functionally equivalent to a dial tone for those businesses’ employees. Why force deaf employees to take a different communications path from 8 am to 5 pm that is not functionally equivalent but once they get into the personal call realm, they can use all of the benefits of Title IV? Sounds like colored bathrooms and water fountains all over again.
I think,in the 21st Century, we should strive mightily to minimize the acceptance of “separate, but equal” philosophies of access. It is a dangerously dated rubric.
Bob
After reading most of the posts mentioned above, it appears to me that the VRS deaf employees can make their “employer” VRS phone calls while at work. In other words, when a deaf employee make a VRS phone call, the employer should not bill these minutes to FCC but claim them as “business expense.” It is simply a tax write off for any business and I do not believe the minutes used internally by deaf VRS employees would have a large impact on their VRS business’s overall profitability. Hypothetically, in order to comply with FCC regulations, deaf VRS employees can simply make VRS phone calls by using a different VRS provider rather than using VRS provider where they work at. One way or another will work. Let’s see what others have to say about this.
By the way, I was reached by a deaf employee from Sorenson Communication last night. Oddly, she asked me and my wife whether we are satisfied with Sorenson Communication VRS service. More I think about it, I realize that she must have dialed a Sorenson VP (probably, the same unit that VRS interpreters use) to reach our household. I wonder what the FCC ruling is about a deaf VRS employee reaching out to every deaf household via their VP unit owned by Sorenson Communication. Maybe, I am opening up a can of worms…… just a thought.
Bob Lichtenberg: I’d like you to use that same excuse to FCC. When they review the Germano v. IPA case…. as briefly considered, the interpreters are just as useable compared to a regular use of a telephone.
If you’re not comfortable I wonder how the interpreters used, inside such business, was able to maintain confidant with the “signs” of a new invention in the market.
What is the point of announcing the VRS’s ID?
Bob: I read w interest your first post. I understand the “pay it forward” concept, but think you’re missing a huge factor here: the incentive among VRS providers to generate artificial calls in order to inflate reimbursable minutes. The FCC’s recent DR is designed to strip them of that incentive by mandating that the costs for such calls be billed as business expenses.
Of course, the argument is made that the DR goes too far by imposing a disparate cost burden on deaf-heavy VRS providers (and, conversely, a windfall on VRS providers with less-than-average deaf employees since they will receive the benefit of a slightly higher VRS rate with no offsetting in-house interpreter costs or overhead). The question in my mind then becomes just how feasible it is for the FCC/NECA to set up a separate, break-even per-minute reimbursement scheme, with its additional administrative burdens and costs.
One last thing: Section 225(d)(1)(D) requires that “users of [TRS] pay rates no greater than the rates paid for functionally equivalent voice communication services”. I think the argument can at least be made that requiring VRS providers to pay for their deaf employees’ VRS calls violates this provision by placing the VRS cost burden on them. Again, however, any solution will need to be administratively feasible, and if a break-even reimbursement rate can be set up, then it should be pursued.
Alan,
Very good comments.
Any changes to status quo will always have challenges.
Agree that FCC and NECA (or TRS Fund Administrator) would probably need to check their RFP/Proposal to see if this is part of their responsibility or not. Having served in TRS Fund Council (NECA advisory council for TRS issues) for 11 years, I would not be surprised if NECA would consider this an additional cost as the agreement probably did not envision VRS employees using VRS. Calculating break-even reimbursement probably is not part of the agreement. However, this issue should not stop FCC pursuing a fair and functionally equivalent solution. Tough issue, to be sure, but solvable. FCC will have to make it “administratively feasible”.
Not unlike when I tried to convince Texas PUC of the feasibility of VRS way back in 1992. It was completely not “status quo” and it did increase the “additional administrative burden and costs” to the PUC budget. Tough going at the time, to be sure, but solvable. Hey, it ultimately was solved.
Same thing for FCC, I trust and hope.
eyes open & thumbs up…
So, if an employer has provided for reasonable accommodations for its deaf employee as required under Title I, does the need addressed by Title IV still exist?
Or is TRS not a reasonable accommodation but a completely different creature?
Nevermind my previous statement, as I just was told that the FCC does not view TRS as a reasonable accommodation.
Because of the declaratory ruling which said providers had to claim the costs of providing VRS service for its employees as a business expense, I assumed that TRS is considered a reasonable accommodation inasmuch as any employer would consider such accommodations as expenses. But if TRS is not a reasonable accommodation, then my argument is pointless now.
However, this brings up another issue, at least to me. As I understand it, the ruling applies only to VRS providers, who would have to claim the cost of providing service as expenses. On the other hand, for VRS calls made on behalf of deaf employees of non-VRS providers, the employers don’t have to assume the costs whatsoever. I have a problem with that.
I mentioned the application of Title I for employee calls as accommodations because I think it would make the February 25th declaratory ruling consistent as both types of employers will receive the same burden in terms of paying for the costs. But obviously that is not to be the case here.
So, is this disparate impact on VRS providers a basis for a legal challenge? Without looking into the issues, I would think so but then again I could be wrong because TRS is a regulated industry done in the spirit of public interest.
CNW-
Like you, I found it fascinating that Ed brought up the disparate impact argument as it may apply to FCC’s Feb. 25th DA. At any rate, the issue may be ‘preserved’ for possible future litigation by an entity, should the FCC decide to maintain the current status quo.
I’m no constitutional law scholar, but after mucking around in Wikipedia and Google, I’m not so sure that the disparate impact can be actionable. Only a liberal court could possibly view this impact through the lens of equal opportunity, and thus, violating the Equal Protection Clause. Equal job opportunity could be interpreted to mean a fundamental right, and afforded strict scrutiny.
Otherwise, a court could view the disparate impact action as one that is an accidental byproduct of govermental policy- Only intentional discrimination would be overturned by the courts. That’s even assuming a court could make a specific finding that the FCC’s Feb. 25th DA has a disparate impact on a class of Deaf/HH people.
Alternatively, the courts could decide the disparate impact claim by using rational basis, as disability isn’t quite a protected category just yet. Under rational basis, the FCC is more than likely to prevail in a disparate impact case. Again, I’m not very well versed in constitutional law; just an academic exercise at that.
Lastly, I suspect that the FCC is not amenable to a regulatory structure that will allow reimbursement on a per-minute basis for Deaf/HH VRS employees on any level. (i.e., just cost of VI, cost of VI+overhead, etc.) I also suspect that when VRS providers provide expense data to the FCC for the purposes of rate-setting, the tiered rate will not go up as much, and may even drop a little bit.
This particular thread is a novel discussion of the application of discrimination law to a regulated business activity and for most of the folks who relish anomalies and their solutions, this is killer stuff. The kind that gets me up and pacing the office hallways while staring at the floor and pulling my ear hairs (only real thing the ears are good for now, I guess).
Alan: I did recognize the FCC’s effort to deal with the incentive to deceive and thereby abuse the reimbursement methodology, however my position is that addressing the incentive to manufacture minutes by treating VRS calls by deaf VRS employees is extreme and out of line with the intent behind Title IV. There are better ways and I think you and I do agree as evidenced in your last sentence. Given the Inslee-Woolsley correspondence to the FCC, this may emerge as the wedge we need to undo the harmful nonsense created by the DR.
CNW: I am a bit puzzled as to you being told the FCC does not view TRS as a reasonable accommodation. If not, what business does it have being in Title IV and the ADA, and……
Cousin Vinny: I competely agree with your assessment of the effective use of disparate impact as a legal argument because the disparate impact is confined to the members of the class of deaf employees of VRS providers. Given the need for a liberal leaning court (is that possible with the DC Federal bench?) to even embrace the concept of righting historical wrongs for the entire class, a subclass ain’t gonna get much protection if the vast remiander of the protected class is still “protected”. This is further weakened when one sees the governmental nexus in via the DR is the FCC’s authority to protect the Fund, which is a legitimate and rational government interest/role. This would get much judicial deference and weaken any disparate impact approach.
What we are probably left with is the Administrative Procedures Act, which was addressed well in Sorenson’s petition. This DR is completely in need of its proper notice and comment day under ths sun. The Inslee-Woolsley correspondence mentions such an approach.